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Your employee's in jail. Can you dismiss him on the basis that he's absconded?

by , 17 February 2015
Many employers find it hard to deal with absconsion. The number of questions our experts get on the Labour and HR Club about this issue is proof.

We sympathise with employers. Anyone would find it difficult to handle a situation where someone just disappears for weeks and doesn't say a word.

An interesting question our experts received this week comes from an employer who wants to know if it's legal to dismiss an employee on the basis that he's absconded, if he's in jail.

Read on to find out the answer so you can deal with absconsion cases correctly.

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What can you do when you think your employee's gone AWOL?
Your employee hasn't shown up for work all week. And you have no idea if he's ever coming back to work!
You've tried getting hold of him to no avail.
What can you do when you think your employee has absconded?
You have to follow the right process before you dismiss him
Click here to find out how to deal abscondment legally…


Should you dismiss an employee who's in jail for absconsion?

As you know, if you think your employee has absconded, you must try to find him.
If during this time, you find out he's in jail, you can't dismiss him for absonsion.
The Practical Guide to Human Resources Management explains that just because your employee is in prison doesn't mean the employment relationship is over. You must still follow the correct process before you terminate employment.
Just bear in mind that each case is different. You must determine what constitutes a proper process on a case-by-case basis.
For example, you must think about if the criminal offense relates to your employee's job or if it's on-duty misconduct. If this is indeed the case, you may be able to dismiss for misconduct.
If, on the other hand, there's no link between the criminal offense and your employee's work and he can't render his services to you because he's in jail, you can't dismiss him for misconduct. Instead, follow a formal consultation process for incapacity.
Check out the Labour Law for Managers Loose Leaf Service to discover the incapacity process you must follow.

It's crucial that you deal with abscondment correctly

While it's difficult to follow a formal pre-dismissal process when your employee's in jail, make every effort to ensure this procedure is fair and communicate with your employee. Otherwise, you risk a claim of unfair dismissal at the CCMA or Labour Court.
And you know what that means: If your employee wins, you may have to pay him up to 12 months' salary or take him back.
What's more, if you don't do anything and assume the employment relationship is over, your employee can, when released from jail, arrive at your company and demand his job back.
PS: Dealing with absconding employees is anything but clear-cut. That's why we recommend you get your hands on AWOL! Your guide to dealing with employees who abscond.
It's a step-by-step guide on the process you need to follow to make sure you deal with absconded employees correctly. With it, you can confidently deal with absconding employees while protecting yourself and your company from an unfair dismissal case.

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